HomeMy WebLinkAbout181 - 12/17/2002 - REPEALING AND REENACTING ARTICLE III OF CHAPTER 12 OF THE CITY CODE REGARDING SMOKING IN PUBLIC PLAC ORDINANCE NO. 181, 2002
OF THE COUNCIL OF THE CITY OF FORT COLLINS
REPEALING AND RE-ENACTING ARTICLE III OF
CHAPTER 12 OF THE CITY CODE, REGARDING
SMOKING IN PUBLIC PLACES AND PLACES
OF EMPLOYMENT
WHEREAS, numerous studies have found that tobacco smoke is a major contributor to
indoor air pollution, and that breathing secondhand smoke is a cause of disease, including lung
cancer, in nonsmokers; and
WHEREAS, at special risk are children, elderly people, individuals with cardiovascular
disease, and individuals with impaired respiratory function, including asthmatics and those with
obstructive airway disease; and
WHEREAS, secondhand smoke has been classified as a Class A carcinogen, along with
other known hazards such as asbestos, by the Environmental Protection Agency; and
WHEREAS, secondhand smoke contains almost 5,000 chemicals, 60 which are known
toxins and carcinogens, including arsenic, formaldehyde, hydrogen cyanide and radioactive
elements; and
WHEREAS, there is no safe level of exposure to secondhand smoke; and
WHEREAS, health hazards induced by breathing secondhand smoke include lung cancer,
heart disease, respiratory infection, and decreased respiratory function, including
bronchoconstriction and broncho-spasm; and
WHEREAS, at its study sessions on June 4, 2002, and on September 24, 2002, staff
presented to the City Council for its consideration various information and materials regarding the
impacts and hazards of secondhand smoke; and
WHEREAS, among the materials that have been presented for Council consideration are:
1. "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other
Disorders", by U.S. Environmental Protection Agency, Office of Research
and Development, 1992;
2. "Acute Effects of Passive Smoking on the Coronary Circulation in Healthy
Young Adults",from the Journal of the American Medical Association,Vol.
286, No. 4, July 25, 2001; and
3. "Multicenter Case-Control Study of Exposure to Environmental Tobacco
Smoke and Lung Cancer in Europe", from Journal of the National Cancer
Institute, Vol. 90, No. 19, October 7, 1998; and
WHEREAS, in enacting this Ordinance, it is the intent of the City Council to prescribe
requirements concerning smoking in certain public places and places of employment, thereby
providing a clean and healthful environment,protecting the health,safety and welfare of the citizens
of Fort Collins, and preventing unreasonable interference with the comfortable enjoyment of those
public places and places of employment; and
WHEREAS,based on its review and consideration of the foregoing,the City Council hereby
finds and declares that it is appropriate and desirable to enact the following provisions in order to:
(1) to protect the public health and welfare by prohibiting smoking in public places and places of
employment; (2) to advance the right of all persons to breathe smoke-free air; and (3) to recognize
that the need to breathe smoke-free air shall have priority in public places and work places over the
desire to smoke.
NOW,THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That Article III of the Code of the City of Fort Collins is hereby repealed and
re-enacted to read as follows:
ARTICLE III. SMOKING IN PUBLIC AREAS
Sec. 12-56. Definitions.
The following words, terms and phrases, when used in this Article, shall have
the meanings ascribed to them in this Section:
Bingo facility shall mean premises used primarily for the purpose of conducting
games of chance.
Designated smoking area shall mean any area designated and operated in
accordance with the requirements of§ 12-63, Designated Smoking Areas".
Employee shall mean any person who is employed by any employer in
consideration for direct or indirect monetary wages or profit, and any person who
volunteers his or her services without wages or other compensation.
Employer shall mean any person, organization, or entity employing the services
of any person, whether or not such employed person is compensated for those
services.
Enclosed area shall mean all space between a floor and ceiling that is enclosed
on all sides by solid walls or windows (exclusive of door or passage ways) that
extend from the floor to the ceiling,including all space therein screened by partitions
which do not extend to the ceiling or are not solid, office landscaping or similar
structures.
-2-
Establishment shall mean the building(s) or facilities in which a business,
enterprise or undertaking, whether or not for profit, is conducted. In the event that
a single business or undertaking is conducted in two (2)or more adjacent buildings,
those buildings together shall comprise the "establishment"for the purpose of this
Article.
Independently ventilated shall mean ventilated so as to prevent the mixing of air
between any area in which smoking is allowed and any smoke-free area.
Performance hall shall mean any area or facility that is primarily used for the
exhibition of any motion picture, stage, drama, lecture, musical recital or other
similar performance, including, but not limited to, concert halls and theaters. An
establishment that is used for another,primary purpose,and that has musical or other
performances on an occasional basis as incidental or complimentary to that different
and primary use, shall not be considered to be a"performance hall". For example,
a freestanding bar that occasionally provides or allows the performance of live music
is not a "performance hall".
Physically separated shall mean separated by physical barriers,such as walls and
doors extending from floor to ceiling, so as to prevent the mixing of air between any
area in which smoking is allowed and any smoke-free area.
Place of employment shall mean any area under the control of a public or private
employer that employees normally frequent or use during the course of employment,
including, but not limited to, work areas, employee lounges and restrooms,
conference and class rooms,employee cafeterias and hallways. Place of employment
shall not include a private residence unless the residence is used as a child care,adult
day care or health care facility.
Private club shall mean any establishment that has a defined membership and
restricts admission to members of the club and their guests. Private club shall not
include an establishment that is open to members of the general public upon payment
of a nominal fee. A private club shall not be considered a "public place" except
when it is the site of a meeting, event or activity that is open to the public.
Private function shall mean any activity that is restricted to invited guests in a
nonpublic setting.
Public place shall mean any enclosed area to which the public is invited or in
which the public is permitted,including but not limited to,attached and freestanding
bars, banks, commercial bingo facilities, convention halls, educational facilities,
child-care, adult day care or medical or health care facilities, guest rooms in any
lodging establishment,Laundromats,performance halls,polling places,professional
offices, public transportation facilities and vehicles, reception areas, restaurants,
retail food production and marketing/grocery establishments, retail service
establishments,retail stores, service lines, and sports arenas. Every room,chamber,
place of meeting or public assembly shall be considered a"public place" during the
-3-
period of time that a public meeting is in progress. All areas of an establishment that
are open to, or customarily used by, the general public, including but not limited to
elevators, restrooms, lobbies, reception areas, hallways, waiting rooms, and other
common areas, are "public places". A private club shall be considered a "public
place" when functions are held at the club that are open to the public. A private
residence shall be considered a"public place"only when in use as a child-care,adult
day care, or health care facility. Common areas in apartment buildings,
condominiums,trailer parks,retirement facilities,nursing homes and other multiple-
unit residential facilities are "public places".
Restaurant shall mean any coffee shop, cafeteria, sandwich stand, private or
public school cafeteria, and any other eating establishment that gives or offers for
sale food to the public, guests, or employees, as well as kitchens in which food is
prepared on the premises for serving elsewhere, including catering facilities. If an
establishment serves malt, vinous, and/or spirituous liquors and actually and
regularly serves meals,and either: (1)has a kitchen facility equipped to prepare other
than prepackaged food for service to patrons of the establishment;or(2)derives not
less than twenty-five(25)percent of its gross income from the sale of food and non-
alcoholic drinks, such establishment shall conclusively be considered to be a
"restaurant" for the purposes of this Article, regardless of the category of liquor
license under which that facility operates.
Retail tobacco store shall mean a retail store utilized primarily for the sale of
tobacco products and accessories and in which the sale of other products is merely
incidental.
Service line shall mean any indoor line at which one (1) or more persons are
waiting for or receiving service of any kind,whether or not such service involves the
exchange of money.
Smoke free shall mean that an establishment or the premises controlled by that
establishment has been declared to be a place in which smoking is prohibited,
whether by the terms of this Article or by the owner or operator of said
establishment.
Smoke or smoking shall mean:
(1) carrying or placing of a lighted cigarette or lighted cigar or lighted pipe or
any other lighted smoking equipment in one's mouth for the purpose of
inhaling or exhaling smoke or blowing smoke rings;
(2) placing of a lighted cigarette, or lighted cigar or lighted pipe or any other
lighted smoking equipment in an ashtray or other receptacle,and allowing
smoke to diffuse in the air;
(3) carrying or placing of a lighted cigarette, or lighted cigar or lighted pipe
or any other lighted smoking equipment in one's hands or any appendage
or device and allowing smoke to diffuse in the air; or
-4-
(4) inhaling or exhaling smoke from a lighted cigarette, or lighted cigar or
lighted pipe or any other lighted smoking equipment.
Sec. 12-57. Findings; purpose.
(a) The City Council has found and determined as follows:
(1) Numerous studies have found that tobacco smoke is a major
contributor to indoor air pollution, and that breathing secondhand
smoke is a cause of disease, including lung cancer, in nonsmokers.
At special risk are children, elderly people, individuals with
cardiovascular disease, and individuals with impaired respiratory
function, including asthmatics and those with obstructive airway
disease; and
(2) Secondhand smoke has been classified as a Class A carcinogen like
asbestos by the Environmental Protection Agency; and
(3) Secondhand smoke contains almost 5,000 chemicals, 60 which are
known toxins and carcinogens, including arsenic, formaldehyde,
hydrogen cyanide and radioactive elements; and
(4) There is no safe level of exposure to secondhand smoke; and
(5) Health hazards induced by breathing secondhand smoke include lung
cancer,heart disease,respiratory infection,and decreased respiratory
function, including bronchoconstriction and broncho-spasm.
(b) Based on the foregoing, the City Council finds and declares that the
purposes of this Article are(1)to protect the public health and welfare by prohibiting
smoking in public places and places of employment; (2) to advance the right of all
persons to breathe smoke-free air; and (3) to recognize that the need to breathe
smoke-free air shall have priority in public places and work places over the desire
to smoke.
Sec.12-58. Smoking prohibited in city buildings and vehicles.
All enclosed facilities of the city, including but not limited to all city-owned
buildings and vehicles owned by the city shall be subject to the provisions of this
Article.
Sec. 12-59. Smoking prohibited in public places.
Smoking shall be prohibited in all public places within the city, except as
otherwise expressly permitted under this Article.
Sec. 12-60. Smoking prohibited in places of employment.
-5-
(a) It shall be the responsibility of employers to provide a smoke-free
workplace for all employees, but employers may comply with this requirement
through the implementation of policies and practices and are not required to incur
any expense to make structural or other physical modifications, unless such
modifications are otherwise required under § 12-63.
(b) Each employer having a place of employment located within the city shall
adopt, implement, make known and maintain a written smoking policy which shall
prohibit smoking in all smoke-free areas within such place of employment. All
common work areas, auditoriums, classrooms, conference and meeting rooms,
private offices,elevators,hallways,medical facilities,cafeterias,employee lounges,
stairs, restrooms, vehicles, and all other enclosed facilities that are, or are within,
places of employment shall be smoke-free areas, whether or not they are public
places, except those areas identified in § 12-62(a). An employer having a place of
employment that includes both smoke-free areas and areas in which smoking is
allowed under this Article shall accommodate any employee who requests a smoke-
free work area by assigning the employee to such an area.
(c) This smoking policy shall be communicated by each such employer to all
employees within three (3) weeks of its adoption, and all employers shall supply a
written copy of the same upon request, to any existing or prospective employee.
Sec. 12-61. Smoke-free perimeter.
In order to prevent smoke from entering any smoke-free area, no person shall
smoke within a distance of twenty(20)feet from any entrance,passageway,operable
window or ventilation system of any smoke-free establishment or area, unless such
person is passing through such area, without stopping, en route to another
destination.
Sec. 12-62. Where smoking is not prohibited.
(a) Notwithstanding any other provision of this Article to the contrary, the
following areas shall be exempt from the smoking prohibition set forth in § 12-59:
(1) Private residences, except when used as a child-care, adult day care or
health care facility.
(2) Up to twenty-five (25)percent of guest rooms in lodging establishments,
including but not limited to bed and breakfasts, hotels, motels and inns.
(3) Retail tobacco stores.
(4) Those portions of an establishment used for private functions that are not
open to the public, during the period of such private use.
-6-
(5) Performance halls to the extent necessary to allow smoking by a performer
as part of a stage production.
(6) Outdoor places of employment.
(7) Rooms used for psychological treatment of nicotine addiction by a
licensed health care professional, and physically separate and
independently ventilated rooms in a hospital, hospice, or nursing home
that are open to all residents as a smoking room and for no other purpose.
(8) Buildings or properties under the control of the United States,the state,the
county,or Poudre School District that have not been designated as smoke-
free by the managing authority.
(9) In a designated smoking area in a bingo facility or bowling alley operated
in accordance with§ 12-63;provided,however,that no such establishment
shall be primarily devoted to the sale or service of alcoholic beverages.
(b) Notwithstanding any other provision of this Article, any owner, operator,
manager or other person in control of any establishment or property not otherwise
required to be smoke-free pursuant to the Article, may declare such establishment
or property entirely or partially smoke-free.
Sec. 12-63. Designated smoking areas.
(a) The owner,lessee,principal manager,or other person in control of a bingo
parlor or bowling alley as referenced in Section 12-62(a)(9) may designate one
smoking area in such establishment so long as said designated smoking area meets
the following requirements:
(1) The size of the area shall not exceed:
a. for designated smoking areas in bingo parlors, fifty (50) percent of
the square footage of the floor area of the establishment that is open
to the public, excluding any waiting area, lobby, hallway, elevator,
restroom, or area adjacent to a food service line or service line, or
cash register area; or
b. for designated smoking areas in bowling alleys, fifty(50) percent of
the square footage of the floor area of the physically separated bar
area; and
(2) The area shall be independently ventilated from the smoke-free areas;
(3) The area shall be physically separated from the smoke-free areas;
-7-
(4) The area shall not include any waiting area, lobby, hallway, elevator,
restroom, or area adjacent to a service line or cash register;
(b) Any service or amenity which the establishment chooses to provide to
patrons, other than smoking, shall at all times be at least as available in the smoke-
free portion of the establishment as in the designated smoking area.This requirement
shall include, but not be limited to, live entertainment and games.
(c) The City Manager may make reasonable rules interpreting the terms
"independently ventilated"and"physically separated"and specifying ventilating and
construction measures that will accomplish these goals.
(d) No owner, lessee, principal manager, or person in control of an
establishment that designates a smoking area shall fail to maintain,post signage for,
and otherwise operate such designated smoking area in accordance with the
requirements of this Article.
(e) If the seating or admission of patrons at an establishment with a designated
smoking area is directed by an employee, no owner, lessee, principal manager, or
other person in control of the establishment shall fail to ensure that such employee
asks each patron for the patron's preference for seating in or use of a no-smoking or
a smoking area. If the seating or admission of patrons at an establishment with a
designated smoking area is not directed by an employee,no owner,lessee,principal
manager, or other person in control of the establishment shall fail to post a
conspicuous sign on all public entrances or in a position clearly visible on entry into
the establishment advising patrons that such a no-smoking area is available and
where it is located.
Sec. 12-64. Posting of signs.
(a) The owner, operator, manager, and other persons in control of an
establishment shall be responsible for posting and maintaining the following signs
in said establishment, as applicable:
(1) "No Smoking" signs or the international "No Smoking" symbol
(consisting of a pictorial representation of a burning cigarette enclosed in
a circle with a bar across it) shall be clearly and conspicuously posted at
every entrance of every establishment required or declared to be smoke-
free under this Article.
(2) In an establishment in which certain areas are designated as smoking areas
pursuant to this Article, a sign using the words "No Smoking Except in
Designated Areas" shall be posted conspicuously at all public entrances
and in a position clearly visible upon entry into the establishment.
(3) In an establishment in which smoking is allowed throughout pursuant to
this Article, a sign using the words "Smoking Permitted" and/or the
-8-
international smoking symbol shall be posted conspicuously at all public
entrances and in a position clearly visible upon entry into the
establishment.
(b) All signs referred to in this Section shall be a minimum size of twenty(20)
square inches and shall be placed at a height of between four (4) and six (6) feet
above the floor.
(c) All ashtrays and other smoking paraphernalia shall be removed from any
area where smoking is prohibited under this Article by the owner,operator,manager
or other person in control of the establishment.
(d) The owner or person in control of any vehicle in which smoking is
prohibited under this Article shall clearly and conspicuously post in the interior of
the vehicle decals or signs stating or indicating that no smoking is permitted in the
vehicle.
Sec. 12-65. Enforcement.
(a) Enforcement of this Article shall be implemented by the City Manager or
his or her designee.
(b) Notice of the provisions set forth in this Article shall be given to all
applicants for a sales/use tax license in the city pursuant to Chapter 25 of this Code.
(c) Any citizen may register a complaint of alleged violation of this Article by
filing a sworn complaint with the City Manager or his or her designee.
(d) Any owner,manager,operator or agent of any establishment regulated by
this Article shall inform persons violating this Article in such establishment of the
appropriate provisions thereof and request their compliance.
Sec. 12-66. Inspection of books and records.
The owner of each establishment operating as an enclosed public place shall keep
a complete set of books of account,invoices,copies of orders, shipping instructions,
bills of lading, correspondence, and all other records necessary to show fully the
business transactions of such establishment, all of which records shall be available
at all times during business hours for inspection and examination by the City
Manager or his or her authorized representatives for use in determining whether an
establishment constitutes a freestanding bar, attached bar, restaurant, or other type
of establishment. The City Manager may require the owner of any such
establishment to furnish such information as he or she considers necessary for such
a determination,and may require that the owner of such establishment cause an audit
to be made of such books of account and records on such occasions as he or she may
consider necessary.
-9-
Sec. 12-67. Nonretaliation.
No person or employer shall discharge,refuse to hire or serve, or retaliate in any
manner against any employee, applicant for employment, or customer because such
employee, applicant, or customer exercises any right to a smoke-free environment
afforded by this Article.
Sec. 12-68. Violations and penalties.
(a) It shall be unlawful for any person who owns, manages, operates or
otherwise controls the use of any premises subject to regulation under this Article to
fail to comply with any of its provisions.
(b) It shall be unlawful for any person to smoke in any area where smoking is
prohibited by the provisions of this Article.
(c) Any person who violates any provision of this Article shall be guilty of a
misdemeanor, punishable by a fine or imprisonment in accordance with § 1-15.
(d) Each day of continuing violation shall be deemed to be a separate
violation.
Sec. 12-69. Public education.
The City Manager shall engage in a continuing program to explain and clarify the
purposes and requirements of this Article to citizens affected by it, and to guide
owners, operators and managers in their compliance with it. Such program may
include publication of a brochure for affected businesses and individuals explaining
the provisions of this Article.
Sec. 12-70. Other applicable laws.
This Article shall not be interpreted or construed to permit smoking where it is
otherwise restricted by other applicable laws.
Sec. 12-71. Severability.
If any provision, clause, sentence or paragraph of this Article or the application
thereof to any person or circumstances shall be held invalid,such invalidity shall not
affect the other provisions of this Article which can be given effect without the
invalid provision or application, and to this end the provisions of this Article are
declared to be severable.
-10-
Section 2. Effective July 1, 2003, Section 12-60 of the Code of the City of Fort Collins
shall be amended so as to read in its entirety as follows:
Sec. 12-60. Designation of specific smoking areas.
The proprietor or person in charge may designate no more than twenty-five (25)
percent of a public place or public meeting as a smoking area, except as follows:
(1) In places of work in which smokers and non-smokers work in the same
office or room, it shall be the responsibility of employers to provide
smoke-free work areas to accommodate employees who request the same;
(2) In no event shall lobbies, hallways, or other common areas typically
shared by smokers and nonsmokers be designated as smoking areas,
except that lobbies, hallways or other common areas which exceed five
thousand feet(5,000)square feet in area may have within them designated
smoking areas,provided that no more than thirteen(13)percent of the total
area of such lobby,hallway or common area is so designated and that such
designated smoking areas are located such that it is not necessary for
nonsmokers to pass through such areas to reach other no-smoking areas;
(3) In restaurants with a seating capacity of over thirty (30) persons, the
proprietor or person in charge shall provide a no-smoking area of
sufficient size to accommodate patrons who request to be seated in such
an area. Patrons must be advised orally and through signs that no-smoking
areas are available;
(4) In no event shall public rest rooms be designated as smoking areas.
Section 3. The provisions of Section 1 of this Ordinance shall take effect as of midnight,
October 1, 2003.
Introduced and considered favorably on first reading and ordered published this 19th day of
November, A.D. 2002, and to be presented for final passage on the 17th day of December, A.D.
2002.
�. Mayor
ATTEST:
City Clerk
-11-
Passed and adopted on final reading this 17th day of December, A.D. 2002.
_-Mayor
ATTEST:
City Clerk
-12-